People v. Aponte CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD244118
- Trial judge
- Matias R. Contreras (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Joan K. Irion
Analysis
The trial court convicted Kim Aponte of using a tear gas weapon and sentenced her to two years in local prison, denying probation. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for using a tear gas weapon (Pen. Code, § 22810, subd. (g)(1)) and denial of probation“A jury convicted Kim Aponte of one count of using a tear gas weapon, not in self-defense (Pen. Code, § 22810, subd. (g)(1)).” | de novo | not reached | agree with court The court did not review the merits of the conviction or sentencing because the appointed counsel filed a Wende brief identifying no arguable issues, and the court's independent review of the record found no error. |
Jury instruction on general criminal intent vs. specific intent“Whether the trial court erred in instructing the jury on principles of general criminal intent, rather than instructing on principles of specific intent?” | de novo | not reached | agree with court The court identified this as a 'possible, but not arguable issue' in the Wende brief and, after independent review, determined it did not warrant reversal, effectively finding the instruction error (if any) was not reasonably arguable or harmless. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues and the court to conduct an independent review of the record if no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record to ensure the defendant's rights are protected.
The appellate opinion: sound — The opinion is procedurally sound as it strictly follows the Wende/Anders protocol for appointed counsel appeals. It correctly states the standard of review and the outcome of the independent record review.
How this analysis was made · dispute it
unusual dispositionThe trial court, after finding Aponte competent to stand trial, entered judgment on a jury verdict convicting her of using a tear gas weapon not in self-defense (Pen. Code, § 22810, subd. (g)(1)), denied probation, and imposed two years in local custody with a concurrent two-year term on revoked probation in two other cases. On appeal, appointed counsel filed a Wende/Anders brief identifying only a possible instructional issue, Aponte filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Instructing the jury on general criminal intent rather than specific intent for the section 22810, subdivision (g)(1) offense“Whether the trial court erred in instructing the jury on principles of general criminal intent, rather than instructing on principles of specific intent?” | unclear | correct | agree with court The opinion does not analyze the issue beyond listing it as a possible but not arguable issue under Anders and stating that independent Wende review disclosed no arguable error. Section 22810, subdivision (g)(1) proscribes the use of tear gas or a tear gas weapon except in self-defense and contains no language requiring an intent to achieve any further consequence, so a general intent instruction is consistent with the statutory text. Nothing in the opinion suggests a specific intent element was omitted. |
Judgment of conviction and sentence of two years local custody, with concurrent term on revoked probation, following competency proceedings and reinstatement of criminal proceedings“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues.” | unclear | correct | agree with court This is an independent Wende review of the whole record, not review of a contested ruling under a stated standard. The opinion recites the facts, the competency proceedings, the sentence, and the fines, and states that no arguable issue was found. The record as described discloses no apparent error, but the opinion gives no detail about the competency finding or sentencing choices, so my agreement rests on the court's representation of its review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure: it recites the facts and procedural history, identifies the issue counsel flagged, notes that the defendant was offered and declined the chance to file her own brief, and states that independent review disclosed no arguable issue. It contains no substantive analysis of the instructional issue, but none is required in a Wende affirmance, and the general intent instruction appears correct on the face of the statute.
Opinion
Filed 5/8/14 P. v. Aponte CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064648
Plaintiff and Respondent, v. (Super. Ct. No. SCD244118)
KIM APONTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Matias R.
Contreras, Judge. (Retired Judge of the Imperial County Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
A jury convicted Kim Aponte of one count of using a tear gas weapon, not in self- defense (Pen. Code, § 22810, subd. (g)(1)). Prior to trial, the court suspended criminal proceedings to evaluate Aponte's competence to stand trial. She was ultimately found competent and criminal proceedings were reinstated. The court denied probation and sentenced Aponte to two years local prison custody. Probation was revoked on two other cases and Aponte was sentenced to a two- year concurrent term. Various fines and fees were imposed as required by statute.
Aponte filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Aponte the opportunity to file her own brief on appeal, but she has not responded.
STATEMENT OF FACTS
The victim in this case is Aponte's husband. They have been married over 24 years and have five children. The offense occurred on October 25, 2012, while Aponte and her husband were attending various medical appointments. Among other things the argument focused on Aponte's stated need to make more medical appointments for a described condition. Her husband wanted proof of the new condition before making more appointments. As the argument escalated, Aponte got out of the driver's seat and into the back seat. When she got into the back seat, she rummaged through her purse and took out a key chain with a canister of pepper spray on it. Aponte then said, "I got your . . . proof right here." Pepper spray was then splashed off the dashboard and door handle into her husband's face. Aponte then helped her husband get out of the car and walked him to the curb. She then told him to find his own way home and drove off. Mr.
Aponte was able to call one of their sons and get a ride home.
2 Aponte was later arrested on an outstanding warrant and thereafter charged with the current offense.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating she is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies a possible, but not arguable issue:
Whether the trial court erred in instructing the jury on principles of general criminal intent, rather than instructing on principles of specific intent?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues. Competent counsel has represented Aponte on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12